F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

NOV 3 2004

PATRICK FISHER
Clerk

ROMAN PETE WANSING,

v.

Petitioner - Appellant,

STEVE HARGETT, Warden; STATE

OF OKLAHOMA,

Nos. 04-7016, 04-7018

(D.C. No. CIV 99-645-P)
(E.D. Okla.)

Respondents - Appellees.
ORDER
Before EBEL, MURPHY and McCONNELL, Circuit Judges.

In 2003, we granted Petitioner Roman Pete Wansing relief pursuant to a

habeas petition, remanding his case to the district court with instructions to enter
judgment granting Mr. Wansings petition for writ of habeas corpus unless the
state retries him within a reasonable time to be determined by the district court.
Wansing v. Hargett, 341 F.3d 1207, 1215 (10th Cir.), cert. denied 124 S. Ct. 960
(2003). In these appeals, Petitioner challenges two orders related to that decision.
The first is the district courts order, issued in response to our remand, directing
Petitioners release or retrial. The second is the district courts order denying
Petitioners motion to expedite his releasea motion that Petitioner filed after

we remanded the case to the district court but before the district court ordered
Petitioners release or retrial.
Before addressing the issues in this appeal, we must clarify the relevant
procedural history of this case since the time of our 2003 judgment, for that
history plays a key role in our analysis. Eight events are particularly important:
1.

On August 29, 2003, we issued our judgment.

2.

On October 6, 2003, Petitioner filed a motion to expedite his release with

the district court.

3.

On October 10, 2003, the district court received a certified copy of our
August 29 judgment and a copy of our opinion.

4.

On December 10, 2003, in response to our remand, the district court issued
an order stating that petitioners habeas corpus petition is granted, unless
the state court retries him within 120 days of this order.

5.

Also on December 10, 2003, the district court overruled Petitioners motion
to expedite his release.

6.

On December 18, 2003, Petitioner gave notice of his intent to appeal the
district courts order granting his habeas petition unless the state court were
to retry him within 120 days.

7.

On or around December 18, 2003, Petitioner gave notice of his intent to

appeal the district courts order overruling his motion to expedite his
release.

8.

From March 29, 2004 through April 1, 2004, Petitioner was re-tried and reconvicted in Oklahoma state court. According to Petitioner, he was resentenced on April 19, 2004.

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On appeal, Petitioner, appearing pro se and in forma pauperis, 1 argues that:

1.

The delay between our August 29 judgment and the district courts
December 10 order directing Petitioners retrial was improper and
prejudicial.

2.

The State of Oklahoma should not have been given 120 days in which to
attempt to effect a retrial.

3.

The 120-day period should have begun on the date of our judgment, rather
than on the date of the district courts order.

4.

He should have been released from custody pending the State of

Oklahomas decision whether or not to retry him.

5.

The retrial violates the Double Jeopardy Clause of the U.S. Constitution,
the doctrine of collateral estoppel, and the Oklahoma constitution.

6.

The State of Oklahoma failed to retry him within 120 days, since Petitioner
was not re-sentenced until nine days after that period had expired.

7.

For a host of reasons, the proceedings during and surrounding his re-trial in
Oklahoma state court were constitutionally flawed.
In its December 10 orders, the district court did not address whether

Petitioner should be granted a certificate of appealability (COA).

Consequently, we treat this appeal as though the district court denied Petitioner a
COA. To obtain a COA, Petitioner must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. 2253(c)(2) (2000). This is
accomplished by establishing that reasonable jurists could debate whether (or,
Based on our review of Defendants financial declarations, we grant his
motion to proceed in forma pauperis on appeal. See 28 U.S.C. 1915(a)(1)
(2000).
1

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for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quotations
omitted). For the following reasons, Petitioner has failed to make such a
showing, and we therefore DENY Petitioners request for a COA and DISMISS
this appeal.
Our analysis of Petitioners first claimthat the delay between our August
29 judgment and the district courts December 10 order directing Petitioners trial
was improper and prejudicialproceeds in two phases. The first phase focuses
on the transmittal of our judgment to the district court; the second, on the district
courts actions after receiving our judgment.
To the extent that any delay in the district courts order may have been
caused by a delay in transmitting our judgment to the district court, we note that
we have acknowledged that delay in the processing or resolution of an appeal may
rise to the level of a due process violation. Harris v. Champion, 15 F.3d 1538,
1558 (10th Cir. 1994) (addressing delays largely attributed to the state public
defenders office). However, the degree of delay in the case at barslightly more
than one month, from August 29 until approximately October 10is not on par
with those delays that we have found to be constitutionally suspect. Cf. id. at

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1560 (establishing that a two-year delay in finally adjudicating a direct criminal

appeal ordinarily will give rise to a presumption of inordinate delay).
To the extent that any delay in the date of the district courts order may
have been caused by the district court itself, we note that delays comparable to
and far longer than the approximately two months 2 at issue in this case have been
deemed acceptable by the Supreme Court and other circuit courts. See, e.g.,
Garrison v. Hudson, 468 U.S. 1301, 1302 (1984) ([A] 6-week delay of the
scheduled retrial would not impose an unreasonable delay on respondent who has
remained in confinement under a life sentence for approximately seven years.);
Knox v. Johnson, 224 F.3d 470, 475 (5th Cir. 2000) (upholding, without directly
addressing, a ten- to eleven-month delay at the district court level in a case
analogous to the one at bar). We do not go so far as to embrace explicitly the
Fifth Circuits tolerance for a ten- to eleven-month delay between the date of an
appellate judgment and the date of a district court order on remand, but merely
hold that the delay in this case was not unreasonable.
With respect to Petitioners second claim, it is clear that the district court
did not err in granting the State of Oklahoma 120 days to effect a retrial.
Allowing 120 days for a retrial is a common practice. See, e.g., Holloway v.

2003.

This delay lasted from approximately October 10, 2003 until December 10,
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Horn, 355 F.3d 707, 730 (3d Cir.), cert. denied No. 04-101, 2004 WL 2069420
(U.S. Nov. 1, 2004); Soffar v. Dretke, 368 F.3d 441, 480 (5th Cir. 2004); Foster
v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993). Thus, it is clear that the district
courts decision to set such a period does not arise to the level of a denial of a
constitutional right. 28 U.S.C. 2253(c)(2).
With respect to Petitioners third claim, there is no reason that the 120-day
period should have begun with the issuing of our judgment. Our judgment did not
set a 120-day limit, but allowed the district court to determine a reasonable time
limit for the State of Oklahoma to retry Petitioner, if the state were to choose to
do so. Wansing, 341 F.3d at 1215. The district court order did not explicitly set
our judgment as the beginning point for the measurement of the 120-day period.
Petitioners fourth claimthat he should have been released pending the
State of Oklahomas decision whether or not to retry himis utterly without
merit. Federal courts are authorized, under 28 U.S.C. 2243, to dispose of
habeas corpus matters as law and justice require. In construing 2243 and its
predecessors, [the Supreme Court] has repeatedly stated that federal courts may
delay the release of a successful habeas petitioner in order to provide the State an
opportunity to correct the constitutional violation found by the court. Hilton v.
Braunskill, 481 U.S. 770, 775 (1987)

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Petitioners fifth and sixth claims are not properly before us. 3 Petitioner
appeals, inter alia, from the district courts December 10 order stating that
petitioners habeas corpus petition is granted, unless the state court retries him
within 120 days of this order. To the extent that Petitioners retrial may have
raised double jeopardy concerns, those concerns are not implicated by the
December 10 order, which merely gave the State of Oklahoma the option of
retrying Petitioner if it chose to do so. Jeopardy attaches when the jury is
empaneled and sworn, Crist v. Bretz, 437 U.S. 28, 29 (1978), so double jeopardy
concerns are not implicated as a result of the district courts order merely giving
the State of Oklahoma the option of empaneling and swearing a jury. To the
extent that Petitioners retrial may have raised double jeopardy concerns under the
Constitution, or analogous concerns under the constitution or laws of the state of
Oklahoma, Petitioner must raise those concerns by first exhausting his state court
remedies, then filing a new 2254 petition. To the extent that Petitioners retrial
may have taken place more than 120 days after the district courts December 10
order, Petitioner should first raise those concerns with the district court.

Thus, while we deny Petitioners request for a COA and dismiss his appeal
with respect to these claims, we do so without prejudice.
3

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Like his fifth and sixth claims, Petitioners seventh claim also is not
properly before us. 4 That claim relates to events that occurred after Petitioner
raised this appeal. Therefore, Petitioner must first exhaust his state remedies,
then file a new 2254 petition, in order to raise this claim. 5
Thus, we DENY Petitioners request for a COA and DISMISS this appeal.

ENTERED FOR THE COURT

David M. Ebel
Circuit Judge

Therefore, as we did with Petitioners fifth and sixth claims, while we

deny Petitioners request for a COA and dismiss his appeal with respect to this
claim, we do so without prejudice.
4

For the same reasons, we also DENY Petitioners Motion for Summary
Judgment, which we treat as a motion to vacate his state court conviction after
retrial.
5

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